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Statement by the New York City Bar Association Against U.S. Sanctions on Persons Working with Or for the International Criminal Court

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Statement by the New York City Bar Association Against U.S. Sanctions on Persons Working with Or for the International Criminal Court STATEMENT BY THE NEW YORK CITY BAR ASSOCIATION AGAINST U.S. SANCTIONS ON PERSONS WORKING WITH OR FOR THE INTERNATIONAL CRIMINAL COURT On July 11, 2020, the President signed an Executive Order (the “Executive Order”),1 authorizing sanctions (including asset freezes and visa denials) against individual staff members of the International Criminal Court (the “ICC”), their families, and others who provide “material assistance,” and U.S. nationals who provide “funds, goods or services,” to anyone designated under the Executive Order. The New York City Bar Association (the “City Bar”) has long supported the ICC and believes the Executive Order is an unwarranted effort to undermine the work of the ICC by imposing sanctions of the type often used by the United States against terrorist organizations, drug traffickers, and certain state entities such as Cuba and Iran in an effort to affirmatively punish the ICC and its staff for performing their judicial functions. This attempt to use executive power to infringe upon the independence of a judicial institution contravenes established principles of judicial independence both in the U.S. and around the world. The broad language of the Executive Order is also likely to have a chilling effect on those who would otherwise have a legitimate interest in ensuring that genocide, crimes against humanity, and war crimes are properly investigated and prosecuted. The City Bar has previously opposed disparagement and threats against ICC staff and their families,2 and recently reaffirmed its commitment to the ICC in letters to members of the U.S. House and Senate.3 The City Bar now calls upon the President to revoke the Executive Order, and, until its revocation, urges Executive Branch Agencies to decline to designate anyone under it. The City Bar also urges the U.S. Congress to consider appropriate legal means to block enforcement of the Executive Order. Since its establishment in 1870, the City Bar has worked to advance and defend the rule of law in New York, the United States and internationally. The City Bar has long advocated for the ICC, principally through the work of its Committees on International Human Rights, African 1 Executive Order on Blocking Property of Certain Persons Associated with the International Criminal Court, June 11, 2020, https://www.whitehouse.gov/presidential-actions/executive-order-blocking-property-certain-persons- associated-international-criminal-court/ (all websites last visited July 28, 2020). 2 Reaffirming Support For The International Criminal Court (ICC Court), New York City Bar Association, April 21, 2020, https://www.nycbar.org/media-listing/media/detail/support-for-the-international-criminal-court. 3 Reaffirming Support for the International Criminal Court in Light of Recent Criticism of Current Investigations, New York City Bar Association, June 10, 2020, https://www.nycbar.org/member-and-career- services/committees/reports-listing/reports/detail/rebutting-recent-icc-criticism. THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 42 West 44th Street, New York, NY 10036 212.382.6600 | www.nycbar.org Affairs, and United Nations, as well as through its Council on International Affairs, the Cyrus R. Vance Center for International Justice, the Task Force on the Rule of Law, and the Task Force on the Independence of Lawyers and Judges. THE INTERNATIONAL CRIMINAL COURT As explained in our April 21, 2020 statement, over the past quarter of a century, international criminal tribunals such as the ICC have played vital roles in advancing the fight against impunity. Based on the 1998 Rome Statute, the ICC has jurisdiction to prosecute the most serious crimes of concern to the international community. One hundred and twenty-three countries are parties to the Rome Statute. Although the U.S. is not a party, a close relationship has existed between the U.S. and the ICC under the Administration of President Barack H. Obama II, and the U.S., under the Administration of President William J. Clinton, participated in drafting the Rome Statute. To date, the ICC has exercised jurisdiction over genocide, war crimes, and crimes against humanity. Since July 17, 2018, it also has the authority to exercise limited jurisdiction over the crime of aggression.4 The ICC is “participating in a global fight to end impunity, and through international criminal justice, the [ICC] aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.”5 Additionally, the ICC plays an important role in promoting the rule of law by elucidating and applying fundamental standards of due process and developing mechanisms for victims to participate and make their voices heard. SANCTIONS AGAINST COURT OFFICIALS AND THEIR FAMILIES The Executive Order, among other things, threatens ICC officials and staff and other “foreign persons,” including “entities” — like universities, NGOs, or even the ICC itself — with asset freezes and (as to individuals) visa denials. This particularly includes lawyers and officials who investigate, on behalf of the ICC, the allegations against U.S. military and personnel of the Central Intelligence Agency (“CIA”) of torture, rape, and other war crimes in Afghanistan as well as related CIA “black sites” in Lithuania, Poland and Romania.6 The same is true for lawyers and 4 The jurisdiction of the crime of aggression activated only on July 17, 2018, but under a different, more limited, jurisdictional regime than the ICC’s other three core crimes. 5 International Criminal Court, About, https://www.icc-cpi.int/about. 6 Specifically, the Executive Order purports to prohibit: (a) transfer, payment, export, withdrawal, or other dealing in, assets of “foreign persons” described in clauses (A)-(D) below, (b) “making of contributions or provision of funds, goods, or services by, to, or for the benefit of,” “foreign persons” described in clauses (A)-(D) below, (c) entry into the U.S. of (i) “aliens determined by the [U.S.] Secretary of State to be employed by, or acting as an agent of, the ICC,” or 2 officials who investigate on behalf of the ICC, “any personnel of a country that is an ally of the United States without the consent of that country’s government.” The Executive Order additionally contains certain language that appears to encompass U.S. nationals.7 REASONS FOR OPPOSITION The Executive Order seriously concerns us for several reasons. 1. The claim that there is a “national emergency” that warrants the Order First and foremost, the actions of one judicial institution, the work of which is largely aligned with U.S. interests (outlined below), is not an “unusual and extraordinary threat to the national security and foreign policy of the United States,” as the Executive Order claims as its basis for a “national emergency.” The ICC has no independent enforcement power and relies upon state support and cooperation. The numerous constraints on the ICC’s operations include unexecuted arrest warrants and funding difficulties. These inherent challenges to the Court’s success have provided fodder for its critics, as evidenced by the June 11, 2020 Press Briefing, during which U.S. officials described the ICC as “grossly ineffective” and a “failed institution.”8 If this is indeed the view of the current administration, the ICC cannot possibly pose an “unusual and extraordinary threat” that constitutes a “national emergency.” (ii) any aliens or spouses or children of any aliens determined by the U.S. Secretary of State, in consultation with the U.S. Secretary of the Treasury and Attorney General, to be a “foreign person” determined (A) to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States; (B) to have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute any personnel of a country that is an ally of the United States without the consent of that country’s government; (C) to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of, [any activity described in (A) or (B) above], or any person whose property and interests in property are blocked pursuant to [the Executive Order], or (D) to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to [the Executive Order].” Executive Order, supra note 1. 7 See Executive Order, Sections 2-3; see also discussion below “[t]he overbreadth and consequent chilling effect of encompassing US nationals.” 8 Remarks to the Press, Michael R. Pompeo, Secretary of State et al., June 11, 2020, https://www.state.gov/secretary-michael-r-pompeo-at-a-press-availability-with-secretary-of-defense-mark-esper- attorney-general-william-barr-and-national-security-advisor-robert-obrien/. 3 At its core, the issue is rather the United States’ insistence that its nationals—or those of any ally, such as Israel,9 that has not consented to the Court’s jurisdiction—be treated as above the law. As such, it is the Executive Order itself—a measure that appears designed to ensure impunity for acts of torture and other violations of international law—that poses the true threat, both to U.S. standing in the world and to the rule of law globally. 2. The disregard that most of the ICC’s work aligns with U.S. interests In attacking the staff and others working with or for the ICC, and mischaracterizing the ICC as a “threat to the national security and foreign policy of the United States” that creates a “national emergency,” the Executive Order ignores the alignment of much of the ICC’s work with U.S.-avowed interests.
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